Frederick Schlottman v. Thomas Perez
739 F.3d 21
D.C. Cir.2014Background
- Schlottman, a probationary DOL employee, alleged harassment and hostile work environment, later fired for unsatisfactory performance.
- He pursued discrimination/retaliation claims via EEO route, MSPB route, and Whistleblower Protection Act route, with overlapping deadlines.
- OSC dismissed his WPA whistleblower claim; he then pursued an MSPB direct appeal and IRA, and separately navigated the EEO route when right-to-file notices were issued.
- Deadline dynamics: EEO route requires formal Title VII complaint within 15 days of right-to-file notice; MSPB route requires direct appeal within 30 days of termination; WPA route requires OSC action first with IRA within 65 days of dismissal.
- Schlottman filed a mixed-case MSPB appeal (June 4, 2009) after OSC dismissal on April 6, 2009, but well outside the EEO 15-day deadline.
- District court and the D.C. Circuit held the savings clause 5 U.S.C. § 7702(f) does not save the untimely Title VII claim because timing is measured by the proper route’s deadlines.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does § 7702(f) save an untimely Title VII claim filed in the wrong forum? | Schlottman: mixed-case filing timely under proper forum; saves claim. | Schlottman: timeliness not saved; filing untimely under proper forum deadlines. | No; timing measured by proper forum deadlines; claim untimely. |
Key Cases Cited
- Whittington v. Merit Systems Protection Board, 80 F.3d 471 (Fed. Cir. 1996) (savings clause applied to filing in correct forum within deadline)
- Williams v. USPS, 115 MSPR 318 (2010) (savings clause preserved timely filing with MSPB when filed with EEOC within MSPB deadline)
- Godesky v. Department of Health & Human Services, 101 MSPR 280 (2006) (timeliness preserved when a timely EEOC filing within MSPB deadline)
- Brent v. Department of Justice, 100 MSPR 586 (2005) (preserves timely filing when filed with appropriate forum within deadline)
- Frank v. Ridge, 310 F. Supp. 2d 4 (D.D.C. 2004) (savings clause applied to preserve timely MSPB appeal despite initial misfiling)
- In re Grant, 635 F.3d 1227 (D.C. Cir. 2011) (persuasive authority on savings clause use)